Will President Trump’s Ban Against Transgender People Serving in the Military Survive a Legal Challenge?

Will President Trump’s Ban Against Transgender People Serving in the Military Survive a Legal Challenge?[1]

                                                                                                                              Herman Brown*

In June 2016, the Pentagon lifted the ban against transgender people serving openly in the military.  W.J. Hennigan, U.S. Military to Allow Transgender Men and Women to Serve Openly, L.A. Times (June 30, 2016, 2:59 PM), http://www.latimes.com/nation/la-na-pentagon-transgender-ban-20160630-snap-story.html.  The new policy allowed transgender service members currently on duty to immediately serve openly and receive all medical care their doctor believed was necessary, which could include hormone therapy and gender reassignment surgery.  Id.

The announcement came after an extensive one-year review by the RAND National Defense Research Institute determining how allowing transgender people to serve openly in the military would impact the readiness of the armed forces and the cost of extending health care coverage for transition-related treatment.  Agnes Gereben Schaefer et al., Rand Corp., Assessing the Implications of Allowing Transgender Personnel to Serve Openly 1 (2016), https://www.rand.org/content/dam/rand/pubs/research_reports/RR1500/RR1530/RAND_RR1530.pdf.  The report found that allowing transgender personnel to serve openly would not “affect unit cohesion—a critical input for unit readiness.”  Id. at 44.  “The underlying assumption is that if service members discover that a member of their unit is transgender, this could inhibit bonding within the unit, which, in turn, would reduce operational readiness.”  Id.

The report noted that similar concerns were raised over whether to allow gays and lesbians to serve openly in the military.  Id.  The evidence suggested that allowing gays and lesbians to serve openly did not reduce operational readiness.  Id.  The report also examined foreign militaries that allowed transgender people to serve openly in the military, and the report found that allowing transgender people to serve openly did not have a significant effect on “cohesion, operational effectiveness, or readiness.”  Id.

The RAND Institute also found that extending healthcare coverage for gender transition-related treatment would not have a significant impact on the military’s budget.  Id. at 36.  Providing coverage for transition-related treatment would only increase healthcare spending by between 0.038 and 0.13 percent.  Id. at 34–36.

On July 26, 2017, President Trump announced via Twitter that transgender people would not be able to serve in the military.  Trump Bans Transgender People from the U.S. Military, via Twitter, Reuters (July 26, 2017, 10:42 AM), https://www.reuters.com/article/usa-military-transgender/trump-bans-transgender-people-from-the-u-s-military-via-twitter-idUSL1N1KH0S5.  He cited the “medical costs and disruption” of the military’s operation that would result from allowing transgender people to serve in the military.  Id.  Many transgender people serving in the military were very concerned about the President’s “announcement . . . that he would ban transgender people from serving in the military.”  Derek Hawkins, ‘People Are Scared’: LGBT Groups Say They’ll Rush to Fight Trump’s Transgender Military Ban in Court, Wash. Post (July 27, 2017), https://www.washingtonpost.com/news/morning-mix/wp/2017/07/27/people-are-scared-lgbt-groups-say-theyll-rush-to-fight-trumps-military-ban-in-court/?utm_term=.35b9dccc5fa3. Some transgender military personnel fear they will be discharged from the military.  See id.

The President formally issued his ban against transgender people serving in the military in a memorandum directed to the Secretary of Defense and the Secretary of Homeland Security on August 25, 2017.  Memorandum on Military Service by Transgender Individuals, 2017 Daily Comp. Pres. Doc. 1–2 (Aug. 25, 2017), https://www.gpo.gov/fdsys/pkg/DCPD-201700587/pdf/DCPD-201700587.pdf.  In the memorandum, President Trump stated:

In my judgment, the previous Administration failed to identify a sufficient basis to conclude that terminating the Departments’ longstanding policy and practice would not hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources, and there remain meaningful concerns that further study is needed to ensure that continued implementation of last year’s policy change would not have those negative effects.

Id. at 1.  The President then directed the Secretary of Defense and Secretary of Homeland Security “to return to the longstanding policy” of banning transgender people from military service.  Id.

The President’s ban against transgender people serving in the military raises serious legal questions and has caused litigation to ensue.  See Camila Domonoske, Transgender Service Members Sue over Planned Ban on Trans People in Military, NPR (Aug. 9, 2017, 5:31 PM), http://www.npr.org/sections/thetwo-way/2017/08/09/542472312/transgender-service-members-sue-over-planned-ban-on-trans-people-in-military.  On August 9, 2017, five transgender service members filed a lawsuit against President Trump and others in the United States District Court for the District of Columbia, alleging that the ban against transgender people serving openly in the military violates the Due Process and Equal Protection clauses of the Fifth Amendment.  Complaint for Declaratory & Injunctive Relief at 1, 12–13, Doe 1 v. Trump, No. 17-cv-1597 (D.D.C. Aug. 9, 2017).  They argued that the President’s ban is unconstitutional because it is “arbitrary and capricious.”  Id. at 13.  They also argued that President Trump is estopped from reinstating the ban because the plaintiffs informed their commanding officers that they were transgender based on the military’s June 2016 policy change.  Id. at 13–14.

Some legal experts have weighed in on whether the President’s ban against transgender people serving in the military will survive a legal challenge.  Shannon Minter, legal director for the National Center for Lesbian Rights, believes the court will likely hold that the soldiers that came out in reliance on the military’s policy change cannot “be subsequently penalized for doing so.”  Shannon Minter, Trump’s Tweets on Trans Soldiers Won’t Hold Up in Court, CNN (July 27, 2017, 6:07 PM), http://www.cnn.com/2017/07/27/opinions/trans-military-ban-opinion-minter/index.html.  To support her conclusion, Minter relies on Watkins v. U.S. Army, 875 F.2d 669 (9th Cir. 1989).  Id.

In Watkins, the plaintiff was a homosexual at the time when homosexuals were not allowed to serve openly in the military.  875 F.2d at 701–04.  The court held the Army was “estopped from refusing to reenlist Watkins on the basis of his homosexuality” because the army continued to reenlist Watkins, even though the Army knew he was gay, and it would be unjust to allow the Army to now enforce the policy against Watkins.  Id. at 709–11.  Minter correctly notes that the principle would likely apply to current transgender soldiers, who relied on the military’s 2016 policy change.  Minter, supra.

There is a colorable argument that the ban against transgender people serving in the military violates the Equal Protection and Due Process clauses of the Fifth Amendment.  President Trump’s new policy only excludes transgender people from serving in the military.  See Memorandum on Military Service by Transgender Individuals, supra, at 1.  John Culhane, a constitutional law professor at Widener University Delaware Law School, opines that “[t]he Trump administration may soon learn that singling out a class of people for exclusion violates the constitutional guarantee of equal protection under the law.”  John Culhane, Trump’s Transgender Ban Is a Legal Land Mine, Politico (July 26, 2017), http://www.politico.com/magazine/story/2017/07/26/trump-transgender-troops-ban-legal-landmine-215425.  It is unclear whether rational basis, which is applied for non-suspect classifications, or intermediate scrutiny would apply to the President’s new policy.  Id.  The Supreme Court has not provided a clear standard of review for Equal Protection claims involving transgender people, and the lower federal courts are split on the issue.  See, e.g., Johnston v. Univ. of Pittsburgh, 97 F. Supp. 3d 657, 668 (W.D. Pa. 2015) (explaining that transgender is not a suspect classification under the Equal Protection Clause and applying rational basis review); Glenn v. Brumby, 663 F.3d 1312, 1315 (11th Cir. 2011) (noting that “more than a rational basis is required” when classifications are made based on gender and sex).

There is a good chance that the President’s policy could fail both heightened scrutiny and rational basis review.  The fact that the Pentagon conducted an intensive review of the issue and found that allowing transgender people to serve in the military would not be disruptive or costly may lead a federal court to conclude that the unequal treatment is not substantially related to an important government interest, nor rationally related to a legitimate government interest.  Schaefer et al., supra, at 36, 44.

*Herman Brown is a second-year law student at the University of Baltimore School of Law, where he is a member of the Royal Graham Shannonhouse Honor Society. In the Summer of 2017, Herman worked as a Summer Associate at Whiteford, Taylor & Preston.  Herman is currently an intern with the Honorable George L. Russell on the United States District Court for the District of Maryland.  For the Summer of 2018, Herman will join Hogan Lovells as a Summer Associate.

[1] Judge Colleen Kollar-Kotelly of the United States District Court for the District of Columbia temporarily blocked the implementation of President Trump’s transgender ban because the administration provided “absolutely no support for the claim that the ongoing service of transgender people would have any negative effect[] on the military at all.”  Doe 1 v. Trump, No. 17-1597 (CKK), 2017 WL 4873042, at *33 (D.D.C. Oct. 30, 2017); see also Dave Philipps, Judge Blocks Trump’s Ban on Transgender Troops in Military, N.Y. Times (Oct. 30, 2017), https://www.nytimes.com/2017/10/30/us/military-transgender-ban.html (discussing Judge Kollar Kotelly’s opinion and its implications).  Judge Kollar-Kotelly also noted that the transgender ban likely violates the Equal Protection Clause because of the “sheer breadth of the exclusion,” the military’s rejection of the proferred justifications under the Obama Administration, and the circumstances surrounding President Trump’s announcement of the transgender ban.  Philipps, supra.